AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 14 July 1999

R v ROBINSON

[1999] NSWCCA 186

Assault & violencePublic order & justice offences
CRIMINAL LAW APPEAL FRESH EVIDENCE WHETHER EVIDENCE COGENT

Citation: R v Robinson [1999] NSWCCA 186
Court: New South Wales Court of Criminal Appeal
Date: 14 July 1999
Judge(s): Abadee J, Ireland J, Barr J

Background

In August 1972, a Sydney Quarter Sessions jury convicted the appellant of assault while armed with intent to rob and malicious wounding with intent to prevent lawful apprehension. The convictions arose from an armed robbery at a Forest Lodge motel in October 1971, in which two men entered wearing stockings over their heads. The Crown case rested heavily on eyewitness identification by a night porter and on admissions the appellant allegedly made to investigating police officers.

The appellant's initial appeal against conviction was dismissed in April 1973. Decades later, he petitioned the Governor under the Crimes Act for a review of his convictions. The Attorney General then referred the whole case to the Court of Criminal Appeal under Part 13A of the Crimes Act, to be dealt with as an appeal, on the basis that a doubt or question had arisen as to the convictions.

The central argument on the fresh evidence appeal was that post-conviction misconduct by two police officers involved in the original investigation was material new evidence that should cause the court to set aside the convictions.

  • Whether the Court of Criminal Appeal, once invested with jurisdiction by an Attorney General's reference under ss 474B and 474C of the Crimes Act, is bound by the perceived doubt or question that triggered the reference, or whether the question of whether to uphold the appeal is entirely a matter for the Court.
  • Whether fresh evidence concerning the subsequent misconduct of two police officers who had taken admissions from the appellant was sufficiently cogent and material to warrant setting aside the convictions.
  • Whether prior misconduct by police witnesses, occurring years after the relevant events, could properly lead a jury to draw adverse conclusions about the credibility of those witnesses at the time of the original investigation.

Decision

Once jurisdiction is conferred by an Attorney General's reference, the Court confirmed that the question of whether to uphold the appeal rests entirely with the Court of Criminal Appeal. The fact that the reference was made because some doubt appeared to exist does not constrain the Court's independent assessment.

The fresh evidence consisted of material relating to subsequent misconduct by two detectives, Harding and Potter, who had taken admissions from the appellant. As to Detective Harding, the evidence related to events many years after the 1972 investigation and, in the Court's assessment, the significant time gap undermined any rational inference about his conduct or credibility at the time he took the admissions.

As to Detective Potter, the evidence showed he had, in 1975, accepted a bribe in an isolated incident while off duty and in the presence of a more senior officer. The Court found this was a single lapse from an otherwise excellent record and that no jury could properly draw any adverse conclusion about his credibility as a witness in 1972 from this later conduct.

The Court concluded that the proposed fresh evidence lacked the materiality and cogency necessary to justify setting aside the convictions. The appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Once jurisdiction is conferred by an Attorney General's reference under Part 13A of the Crimes Act, the Court of Criminal Appeal conducts its own independent assessment. The doubt or question that triggered the reference does not determine the outcome.
  • Fresh evidence must satisfy tests of materiality and cogency before it can ground the setting aside of a conviction on appeal. Evidence that falls short on either criterion will not succeed.
  • Subsequent misconduct by a police witness does not automatically undermine that witness's credibility at an earlier point in time. The Court assessed the temporal distance between the original conduct and the later misconduct as directly relevant to the weight of the fresh evidence.
  • In dismissing the appeal, the Court treated an isolated act of misconduct committed years after the relevant events, against an otherwise unblemished record, as insufficient to impugn the officer's credibility at trial.
  • A reference by the Attorney General under the Crimes Act petitions process is a distinct procedural gateway: it brings the case before the Court of Criminal Appeal, but the merits of the appeal are then determined on ordinary appellate principles.

Legislation and Cases Referenced

Legislation:
- Crimes Act, ss 330, 474B, 474C(1), (2)
- Evidence Act, ss 102, 103(1), 106(e)
- Independent Commission Against Corruption Act, s 87

Cases:
- Regina v Pederick, Court of Criminal Appeal, 21 May 1997 (unreported)
- Regina v Pohl, Court of Criminal Appeal, 17 December 1993 (unreported)
- Regina v Rendell, Court of Criminal Appeal, 22 June 1994 (unreported)
- Regina v O'Connor (1995) 80 A Crim R 214
- Regina v Kevin Craig Hastings, Court of Criminal Appeal, 29 September 1997 (unreported)
- Gallagher v The Queen (1986) 160 CLR 392
- Mickelberg v The Queen (1989) 167 CLR 259
- Regina v Richard George Miller, Court of Criminal Appeal, 3 May 1996 (unreported)
- Regina v Mustafa Marsala, Court of Criminal Appeal, 31 May 1996 (unreported)
- Regina v Dean McLaren, Court of Criminal Appeal, 22 October 1996 (unreported)
- Regina v Geza Vastag, Court of Criminal Appeal, 20 June 1997 (unreported)
- Regina v John Leslie Baartman, Court of Criminal Appeal, 30 June 1997 (unreported)
- Regina v Peter Franks, Court of Criminal Appeal, 11 December 1997 (unreported)
- Regina v Christopher Hasenkamp, Court of Criminal Appeal, 24 February 1998 (unreported)